All posts by Julie Anne Ines

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Instructions Must Not Interfere With Jurors’ Ability to Consider Their Personal Religious, Philosophical, and Secular Normative Values During Penalty Deliberation

November 17, 2019 Julie Anne Ines

During the penalty instructions in People v. Gomez (Ruben P.) (2018) 6 Cal.5^th 243 the judge said that jurors “are sometime tempted in this phase of the case to refer to biblical references. Don’t bring the Bible and, don’t refer to those.” The CSC concluded that it is not improper for jurors to consider their religious belief during penalty deliberations. Nor is improper for a juror to consider “personal religious, philosophical, or secular normative values during penalty deliberation.” At the same time, penalty determinations are to be based on evidence presented and not by recourse to extraneous authority. The CSC agreed with the Attorney General that the court’s prohibition on “refer[ring] to biblical references,” understood in context, precluded only the use of biblical texts during deliberations; it did not preclude the jury from relying on personal religious beliefs. The instructions correctly stated the law. Furthermore, it was not reasonably likely that the jury understood the trial court’s brief statement regarding “biblical references” to mean they could not rely on their personal religious belief during deliberations.

Nevertheless, the CSC cautioned judges to ensure that they are not improperly interfering with the jurors’ ability to consider their religious and other personal beliefs and values.

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Should Penalty Phase Jury Be Instructed to Consider Both the Defendant’s Chronological and Psychological Age?

November 10, 2019 Julie Anne Ines

CJ 763(i) tells the jury to consider “the defendant’s age at the time of the crime[s]” in deciding whether or not the defendant should be sentenced to death. This factor should permit the jurors to consider the defendant’s chronological and/or psychological age in mitigation.

In Roper v. Simmons (2005) 543 U.S. 551, 570, 125 S. Ct. 1183, 1195-96 the USSC recognized the following sorts of mitigating characteristics with respect to juveniles under 18 years of age:

The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Thompson, supra, at 835, 101 L. Ed. 2d 702, 108 S. Ct. 2687 (plurality opinion). Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. See Stanford, 492 U.S., at 395, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (Brennan, J., dissenting). The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will [**1196] be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.”

Thus, because “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18[]” (Roper, 543 U.S. at 574) the jurors in the penalty phase of a capital case should be permitted to consider characteristics such as those identified in Roper as mitigating factors under CC 765(i).

In other words, the jurors should generally be permitted to consider both the chronological and/or psychological age of the defendant in mitigation. (See People v. Powell (2018) 6 Cal.5th 136, 187 [upholding as “adequate” the trial judge’s modification of CJ 8.85, factor (i), concerning defendant’s age, “to permit the jury to consider defendant’s ‘chronological or psychological age at the time of the crime.’” (Emphasis in original)]; see also People v. Cox (91) 53 C3d 618, 675 [under the “age” factor the defense may rely upon the defendant’s “psychological immaturity”]; cf., People v. Smithey (99) 20 C4th 936 [refusal of requested instruction that mental age of retarded defendant should be considered as evidence of mitigation not error where jury generally instructed to consider defendant’s mental retardation and mental age in deciding appropriate penalty].)

In sum, “just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing.” (Eddings v. Oklahoma (1982) 455 U.S. 104, 116, 102 S. Ct. 869, 877.)

Is Felony Murder Based on “Inherently Dangerous” Felony Unconstitutionally Vague?

November 5, 2019 Julie Anne Ines

People v. Frandsen (2019) 33 Cal.App.5^th 1126 held that the California second-degree felony-murder, which requires a felony “inherently dangerous to human life” in the abstract, is not unconstitutionally vague. Johnson v. United States (2015) 576 U.S. ___ [192 L.Ed.2d 569, 135 S.Ct. 2551] is distinguishable. Unlike the federal sentencing statute invalidated in Johnson, California’s second-degree felony-murder rule tests the actual elements of the underlying felony. “Such an approach avoids the uncertainties identified by the Johnson court as fatal to the ACCA residual clause. This is because when a court evaluates the statutory elements of the crime, it is not required to ‘imagine’ what an ‘ordinary’ crime would look like. Neither is a defendant required to guess at whether his conduct is dangerous to life. Rather, the court must determine, by examining the elements of the crime, whether it could possibly be committed without creating a substantial risk that someone will be killed.” (33 Cal. App. 5^th at ]; see also In re White (2019) 34 Cal. App 5^th at 33 [California’s second-degree felony-murder rule is not unconstitutionally vague as applied to this case in which the predicate felony was manufacture of methamphetamine. A felony may be inherently dangerous even if scenarios can be imagined in which the felony could be committed without endangering human life.

But see dissenting opinion in White which would apply Johnson to find California’s former second degree felony-murder rule unconstitutionally vague in general. “Under Johnson, then, a statute fails to provide ordinary people fair notice of what is criminal when it requires courts to apply an indefinite standard to an abstract construction of a statute that is not tied to their own conduct. This holding condemns few laws, but, in my view, one of them is California second degree felony murder.” (Dis. opn., supra at 963, fn. omitted.) Also, “my view is that our second degree felony-murder law is unconstitutionally vague under Johnson because it has a defendant’s guilt depend on a court’s evaluation of a hypothetical risk posed by an abstract generic version of the offense.” (Dis. opn., supra at 970.)

Moreover, the importance of Johnson is further demonstrated by the Ninth Circuit’s decision in Henry v. Spearman (9^th Cir. 2018) 899 F.3d 703 which concluded that Johnson provides a reasonable basis for concluding that California’s inherently dangerous second degree felony murder rule is unconstitutionally vague.

Henry analyzed the issue as follows:

“In Johnson, the Supreme Court held that the Armed Career Criminal Act’s (‘ACCA’) residual clause was unconstitutionally vague. The ACCA prescribes a mandatory minimum sentence if a person convicted of being a felon in possession of a firearm has three prior convictions for ‘violent felonies.’ That statutory term includes any felony that: ‘(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.’ 18 U.S.C. § 924(e)(2)(B). The italicized text is known as the ACCA’s residual clause. Because the ACCA looks simply to the existence of prior ‘violent felony’ convictions, the statute requires a court to assess ‘whether a crime qualifies as a violent felony “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.”’ Johnson 135 S.Ct. at 2557. ‘Deciding whether the residual clause covers a crime thus requires a court to picture the kind of conduct that the crime involves in “the ordinary case,” and to judge whether that abstraction presents a serious potential risk of physical injury.’ Id.” [Additional citations omitted.]

“The Court concluded that ‘[t]wo features’ of the ACCA’s residual clause render it unconstitutionally vague. Id. First, ‘the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime’ by tying ‘the judicial assessment of risk to a judicially imagined “ordinary case” of a crime, not to real-world facts or statutory elements.’ Id. Second, ‘the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.’ Id. at 2558. The resulting ‘wide-ranging inquiry … both denies fair notice to defendants and invites arbitrary enforcement by judges.’ Id. at 2557. ‘By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.’ Id. at 2558.”

California’s second-degree felony-murder rule, which the 9^th Circuit describes as “unique,” imputes malice from the commission of any felony that, viewed in the abstract, is inherently dangerous. There is no closed list of predicate felonies. See, e.g., People v. Chun, 45 Cal.4^th 1172 (2009).

“Henry contends that the same two features of indeterminacy are at work in California’s second-degree felony-murder rule” as in the ACCA residual clause held invalid in Johnson. The 9^th Circuit cites an article making this argument at length. Evan Tsen Lee, Why California’s Second-Degree Felony-Murder Rule is Now Void for Vagueness, 43 Hastings Const. L.Q. 1 (2015) [author is a professor at UC-Hastings].

As to the first point, “[a]t times the California Supreme Court has asked whether, ‘by its very nature, [the crime] cannot be committed without creating’ an undue risk to human life, People v. Burroughs, 35 Cal.3d 824 (1984), while at other times it has considered the ordinary commission of a crime, ‘even if, at the time of the [offense],’ there was no innate risk at all, People v. Hansen, 9 Cal.4th 300 (1994), overruled on other grounds by Chun, 45 Cal.4th 1172.”

As to the second point, “the risk threshold for an inherently dangerous crime is imprecise, with the California Supreme Court alternatingly describing that standard as a ‘substantial risk’ or ‘high probability’ that someone will be killed.” The court cites People v. Robertson, 34 Cal.4^th 156 (2004), using the phrases interchangeably, and the separate opinions of Chief Justice Lucas and Justice Mosk in People v. Patterson, 49 Cal.3d 615 (1989), stating that the two phrases mean something different.

The court rejected the state’s argument that Henry lacks standing to make a facial vagueness challenge because the predicate felony in his case, shooting at an inhabited dwelling, is inherently dangerous under any standard and was held to be included in the second-degree felony-murder rule in People v. Hansen, 9 Cal.4^th 300 (1994), prior to his offense. The 9^th Circuit says this argument is inconsistent with Johnson, which struck the residual clause in its entirety without considering the circumstances of Johnson’s own crime, and appears to be inconsistent with subsequent USSC decisions interpreting Johnson.

The court also rejected the state’s “cramped reading of Johnson” limiting it to the particular context of the ACCA. The USSC recently relied on Johnson to invalidate a different statute not comparable to the ACCA in the ways that the state refers to. Sessions v. Dimaya, 138 S.Ct. 1204 (2018).

Strategy Note: Application of Henry to Other California Crimes

It is unlikely that second-degree felony murder is the only California crime that has vaguely defined elements and may be vulnerable to a vagueness challenge under Johnson on direct appeal or, if the appeal is over, on habeas. For example, the predicate felonies for first-degree felony-murder convictions and felony-murder special circumstance findings could be subject to vagueness challenges.

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Conscious of Guilt: Court Absences — Instruction Not Warranted for Brief Refusal to Attend Trial?

October 29, 2019 Julie Anne Ines

People v. Gomez (Ruben P.) (2018) 6 Cal.5^th 243 held that a permissive inference of consciousness of guilt is not appropriate simply because a defendant briefly refused to come to court. There was no reason to think defendant’s refusal to come to court was indicative of consciousness of guilt. Gomez may simply have been tired as he was being roused for court before 6 a.m. Or he may have been frustrated by the trial process and wanted to assert more control over it. None of these circumstances supported an inference of consciousness of guilt. Permissive inferences are constitutionally suspect when “under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference.” Here, the court’s proposed inference – that defendant’s brief refusal to come to court reflected consciousness of guilt – was “not one that reason and common sense justify in light of the proven facts before the jury.” The judge’s decision to admit evidence of defendant’s refusal to come to court and accompanying instructions on consciousness of guilt therefore violated of defendant’s constitutional rights to due process.

The CSC has previously approved making such inferences in a case where the defendant escaped from prison while awaiting trial; where a defendant skipped bail and missed the guilt phase of his trial; and where defendant missed two pretrial hearings. However, there is another line of cases where the CSC found error in a court assigning consciousness of guilt for brief court absences that occurred for reasons other than an attempt to elude prosecution or punishment. Here, the evidence suggested defendant merely intended to disrupt the court proceedings temporarily, not to avoid prosecution or punishment, so admission of the evidence was error.

It is proper to instruct on consciousness of guilt in cases where the defendant sought to prevent the production of evidence, for example by refusing to participate in a line-up, to provide hair or blood samples or to give a voice exemplar. In those situations, a defendant sought to interfere with evidence, presumably out of fear that it would incriminate them. Here, by contrast, defendant mere sought to temporarily delay proceedings, not to thwart the production of evidence nor to fabricate false evidence, so the instruction was error.

Nevertheless, Gomez was not prejudiced by the admission of evidence that he briefly refused to attend court and the instruction that the jury could infer from this that defendant harbored consciousness of guilt. The fact the jury did not find defendant guilty on all the counts suggests that the trial court’s errors did not have the sweeping effect argued by defendant. The prosecution did not rely significantly on the circumstances around defendant’s absence and made no mention of it during closing argument. Further, in light of the considerable evidence of guilt presented over the months-long trial the errors did not carry material weight at the guilt phase. There is also little chance the evidence influenced the jury’s penalty phase decision. Defendant was convicted of four out of five murders charged and the prosecution presented substantial evidence of additional violent acts committed by defendant both before and after the murders, including acts in the jail while defendant awaited trial. This was in contrast to relatively little mitigation evidence offered by the defense. The trial court’s error did not affect the jury’s verdict.

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How Should the Jury Be Instructed in a Death Penalty Case in Which the Defendant Asked for the Death Penalty?

October 25, 2019 Julie Anne Ines

In People v. Anderson (2018) 5 Cal.5th 372, 423 the defendant asked the jury at the punishment phase to give him the death penalty.

The California Supreme Court held that the instruction set forth below “was sufficient to protect defendant from an unreliable verdict.”

Sample Instruction:

Each of you remains obligated to decide for yourself, based upon the weighing of the factors in aggravation and mitigation, whether death or life without possibility of parole is the appropriate penalty, despite testimony offered by the defendant suggesting a preference for the death penalty.

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Aider and Abettor: Natural and Probable Consequences – Unanimity as to Commission of Nontarget Offense

October 22, 2019 Julie Anne Ines

The majority opinion in People v. Smith (2014) 60 Cal. 4th 603 concluded that the requirement of juror unanimity as to all essential elements of the charge does not apply to commission of the nontarget offense alleged under the natural and probable consequences doctrine:

The prosecution theory was that Littleton was the killer. But exactly who shot and killed the two victims was not entirely clear….Naturally, in order to return a guilty verdict, the jury must agree unanimously that each element of the charged crime has been proved, but the factors that establish aiding and abetting liability are not included as elements of the crime of murder. … “Once the discrete event is identified, for example, the killing of a particular human being, the theory each individual juror uses to conclude the defendant is criminally responsible need not be the same and, indeed, may be contradictory.” [Citation.] It suffices if the jury unanimously agrees that the prosecution has proven beyond a reasonable doubt every element necessary to establish guilt of a discrete crime. (Id. at pp 617-18.)

However, as Justice Lui persuasively argued in his concurring opinion, commission of the nontarget offense is an essential element of natural and probable consequence liability:

Today’s extension of the Santamaria rule is problematic because an essential element of proving that a defendant committed murder under a natural and probable consequences theory is valid proof that one (or more) of the defendant’s confederates committed murder. (See People v. Prettyman (1996) 14 Cal.4th 248, 267 [natural and probable consequences liability requires proof that “the defendant’s confederate committed an offense other than the target crime(s)” (italics omitted)].) Our case law has always held—and today’s opinion does not dispute—that independent and satisfactory proof of the nontarget offense is itself a necessary element of proving a defendant’s vicarious liability for that offense under a natural and probable consequences theory. A finding by six jurors that Littleton (and no one else) committed murder, together with a finding by six other jurors that Moody (and no one else) committed murder, does not add up to a valid finding that anyone committed the nontarget offense of murder in this case. We have never said that murder can be proven that way, and we should not adopt a special rule here. It is no answer to say that “[t]he jury certainly had to find that someone committed murder.” (Maj. opn., ante, 180 Cal.Rptr.3d at p. 113, 337 P.3d at p. 1170.) To say the jury found that “someone committed murder” is a conclusory play on words. There is no finding of “murder” under the law simply because each of twelve jurors believes “someone” killed with malice. Even if Smith’s liability for murder does not depend on whether Littleton or Moody (or anyone else) would be convicted of murder if tried in a separate proceeding (cf. People v. Wilkins (1994) 26 Cal.App.4th 1089, 1093–1096 it is essential that the jury in this proceeding find valid proof of the nontarget offense of murder. As a point of contrast, it would not matter whether the jury could determine who killed each victim if the jury had found that all possible shooters acted with malice aforethought toward Hunt and McCarthy. In that scenario, each possible shooter would have been either a perpetrator or an aider and abettor of the murders and, as such, would have been liable for murder, no matter who actually shot each victim. But the jury instructions in this case did not require any such finding as to all possible shooters, and the record does not compel such a finding beyond a reasonable doubt. In sum, a finding by each member of the jury that someone within the group of possible shooters killed the victims with malice—without any agreement on the shooter’s identity or a unanimous finding that all possible shooters acted with malice—is not valid proof that anyone committed the nontarget offense of murder. Without such proof, an essential element of Smith’s liability for murder under a natural and probable consequences theory is missing.

People v. Smith (2014) 60 Cal. 4th 603, 622-23, 337 P.3d 1159, 1172

See also, Mendez, California Evidence Code—Federal Rules of Evidence (7^th Ed. 2019) Section III(IX) [“…jury unanimity should … be required in finding preliminary facts that constitute elements of the offense charged.”].

Strategy Note: Until this question is definitively resolved in federal court counsel may wish to request a unanimity instruction in such situations under clearly established USSC precedent which mandates that the prosecution prove every essential element of the charge. (Apprendi v. New Jersey (2000) 530 U.S. 46; In re Winship (1970) 397 U.S. 358.) “Failure to submit to the jury the essential elements of the crime is ‘fundamental’ error.” (Screws v. United States (1945) 325 U.S. 91, 107.)

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Should Accomplice Corroboration Instruction Be Repeated at Penalty Phase?

October 18, 2019 Julie Anne Ines

In People v. Gomez (2018) 6 Cal 5^th 243 the trial court failed to reinstruct the jury during the penalty phase that independent evidence must corroborate accomplice testimony. The CSC concluded that any error was harmless. The jury had concluded the defendant was guilty in four of five murders charged. The prosecutor did not focus on the one murder linked to defendant by accomplice testimony, on which the jury could not reach a verdict at guilt phase. The jurors were instructed that if they found beyond a reasonable doubt that defendant did commit this murder, they could consider that in aggravation. Jurors who did not find the murder proved could not consider it in aggravation. Finally, the prosecution offered substantial evidence concerning other violent acts committed by the defendant and the defense provided relatively little evidence in mitigation. Under these circumstances the CSC assumed that instructional error was committed but held that there was no reasonable possibility that the error affected the jury’s penalty determination.

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Should Jurors Be Cautioned Regarding Accomplice Testimony Which Is Neutral Or Exonerating?

October 15, 2019 Julie Anne Ines

In People v. Smith (2017) 12 Cal. App. 5th 766, 778-80 the judge instructed the jury per the standard CALCRIM instructions that accomplice testimony requires corroboration before the jury may accept it as true. The appellate Court criticized these instructions because they failed to explain that the supporting evidence requirements applies “only when [the accomplice] testimony is being used to determine a fact used to convict a defendant.” (Id. at 780.) Furthermore, CC 301 was erroneous because “it instructed the jury that … all of Mitchell’s testimony, including the exculpatory testimony pertaining to Smith, required corroborating evidence before the jury could accept it as true.” (Id. at 780.) In other words, CC 301 “improperly informed the jury that there must be corroborating evidence to support an accomplice’s testimony that is either neutral or exonerating.” (Ibid.)

The CALCRIM committee modified CC 334 in response to Smith by limiting the corroboration requirement to a statement or testimony “that tends to incriminate the defendant….” This change implies that exonerating statements/testimony need not be corroborated or viewed with caution the instruction so counsel may wish to request an instruction which expressly explains this distinction.

Furthermore, the defense could object to CC 334 if the accomplice testimony is “solely exculpatory or neutral.” (See CC 334, Bench Notes [citing Smith].)

Support for the above proposals is rooted in fundamental constitutional principles. In Washington v. Texas (1967) 388 U.S. 14, the United States Supreme Court held that a criminal defendant has a Sixth Amendment right to present exculpatory testimony of an accomplice to the jury. In Cool v. United States (1972) 409 U.S. 100, 104, the Court held that instructing a jury to ignore defense accomplice testimony unless the jury believed the testimony to be true beyond a reasonable doubt “impermissibly obstruct[ed] the exercise of that right” and “ha[d] the effect of substantially reducing the Government’s burden of proof.”

Sample Instruction (add at end of CC 334):

The above rules do not apply accomplice testimony or statements which are neutral or tend to negate or disprove any essential fact or element of the charged offense.

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Death Penalty Mitigation: Jurors Should Consider “Any Credible Evidence” Of Mitigating Factors

September 24, 2019 Julie Anne Ines

People v. Powell (2018) 6 Cal.5th 136, 186, while not holding that such instructions were required, concluded that the standards applicable to mitigation evidence were sufficiently explained by the standard CALJIC instructions and an instruction advising “the jury that mitigating factors need not be proven beyond a reasonable doubt and that a mitigating factor may be found to exist ‘if there is any credible evidence to support it.’”

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Is A Butter Knife An Inherently Deadly Weapon?

September 17, 2019 Julie Anne Ines

In re B.M. (2018) 6 Cal.5th 528, 531-39 the CSC held that there was no substantial evidence that B.M. use of a butter knife was likely to cause great bodily injury within the meaning of PC 245(a). The Court reaffirmed its rule that an object alleged to be a deadly weapon must be used in a manner that is not only “capable of producing” but also “likely to produce death or great bodily injury.” (Id. at 531-35.) Although some objects are dangerous weapons as a matter of law, a knife is not. The court analyzed People v. Aguilar (1997) 16 Cal.4th 1023 and explained that the trier of fact may consider the following when determining whether an object is a deadly weapon based on how it is used: (1) the nature of the object and any damage done to the object; (2) the manner in which it is used; (3) what harm could have resulted based on how the object was actually used; (4) actual injury, or lack thereof, caused by the object; (5) the facts known to the aggressor before the assault, including defensive measures taken by the victim; and (6) all other relevant facts. A finding that a knife is likely to produce GBI requires more than a mere possibility that serious injury could have resulted from the way the object was used. Conjecture as to how the object could have been used is inappropriate. Here, even if B.M.’s use of the butter knife against her sister were capable of causing great bodily injury, the evidence was insufficient to show that it was likely to produce GBI or death.